Ayling v. Crosson

UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL
REPORT & RECOMMENDATION

ALAN
J. BAVERAJA UNITED STATES MAGISTRATE JUDGE.

This
matter has been submitted to the undersigned for
consideration of Defendant Elliot Crosson's application
to proceed in forma pauperis (“IFP”).
[Doc. 1]. The Court GRANTS Defendant's
IFP request and RECOMMENDS that this matter
be REMANDED to the Magistrate Court of
Clayton County due to lack of subject matter jurisdiction.

I.
Introduction

On
October 19, 2017, Plaintiff filed a dispossessory proceeding
against Defendant regarding of the premises at 8851 Wesley
Place, Jonesboro, Georgia, 30238 (“the
Property”), in the Magistrate Court of Clayton County,
alleging that Defendant had failed to pay rent and seeking
possession of the Property, past due rent of $890, and rent
accruing up to the date of the judgment at a rate of $10 per
day. [Doc. 1-1 at 4].[1]Service of process was accomplished on
October 28, 2017. [Id.]. Defendant removed the
action to this Court on November 11, 2017, contending that
this Court has federal-question jurisdiction to hear this
dispute based upon due process clause of the United States
Constitution's Fourteenth Amendment. [Id. at 2].

II.
IFP Application

Defendant
lists monthly income of $800, comprised of gross monthly pay
of $800, no debts, one dependent, minor children, and
negligible assets and savings. [Doc. 1 at 1-3]. Defendant
lists debts owed to him of $5, 000. [Id. at 3].
Defendant lists monthly expenses of $900 in rent (as of
9/1/17), $200 in clothing, $500 in food, $300 in
transportation, $54 in laundry and dry-cleaning, $200 in
medical and dental expenses, $100 in entertainment, $200 in
motor vehicle insurance, $45 in business expenses, and $290
in alimony payments, totaling $2, 789. [Id. at 4-5].
He explains that he cannot pay the filing fee because
“business is slow.” [Id. at 5].

Pursuant
to 28 U.S.C. § 1915(a), the Court “may authorize
the commencement . . . of any suit, action, or proceeding . .
. without payment of fees and costs or security therefor, by
a person who submits an affidavit that includes a statement
of all assets such prisoner[2] possesses that the person is
unable to pay such fees or give security therefor.”
Id. § 1915(a). The affidavit required by the
statute must show an inability to prepay fees and costs
without foregoing the basic necessities of life. Adkins
v. E.I. duPont de Nemours & Co., 335 U.S. 331, 339
(1948); Zuan v. Dobbin, 628 F.2d 990, 992
(7th Cir. 1980). Section 1915 is intended to
provide indigent litigants with meaningful access to courts.
Adkins, 335 U.S. at 342-43; Neitzke v.
Williams, 490 U.S. 319, 324 (1988); see also Attwood
v. Singletary, 105 F.3d 610, 612 (11th Cir.
1997) (Section 1915 is designed to ensure “that
indigent persons will have equal access to the judicial
system.”).

Thus,
§ 1915 authorizes suits without the prepayment of fees
and costs for indigent litigants. Denton v.
Hernandez, 504 U.S. 25, 27 (1992). It bears emphasizing
that § 1915 creates no absolute right to proceed in
civil actions without payment of costs. Instead, the statute
conveys only a privilege to proceed to those litigants unable
to pay costs without undue hardship. Startti v. United
States, 415 F.2d 1115, 1116 (5th Cir.
1969).[3] Moreover, while the privilege of
proceeding in forma pauperis does not require a
litigant to demonstrate absolute destitution, it is also
clear that “something more than mere statement and an
affidavit that a man is ‘poor' should be required
before a claimant is allowed to proceed in forma
pauperis.” Levy v. Federated Dep't
Stores, 607 F.Supp. 32, 35 (S.D. Fla. 1984); Evensky
v. Wright, 45 F.R.D. 506, 507-08 (N.D. Miss. 1968).

Assuming
the facts asserted by Defendant in the IFP are true,
Defendant's monthly expenses exceed monthly income. [Doc.
1 at 1-4]. The Court, however, suspects that the financial
affidavit is not correct or incomplete in material respects.
For example, Defendant reports rental expenses, [id.
at 4], while simultaneously removing a state dispossessory
and suit for back rent. As a result, the Court doubts that
the current financial affidavit is an accurate report of
Defendant's current financial condition.

Be that
as it may, the nature of the underlying state court action
reflects that Defendant is in imminent threat of being
evicted for a relatively small past-due balance, indicating
that Defendant in fact cannot afford to pay the fees and
costs associated with commencing this removal action in this
Court.

Having
found that Defendant may proceeding IFP, the Court must now
conduct a frivolity review. Under 28 U.S.C. §
1915(e)(2)(B), a “district court must dismiss an in
forma pauperis complaint at any time if it determines
that the action ‘is frivolous or malicious.'
” Jackson v. Farmers Ins. Group/Fire Ins.
Exchange, 391 Fed.Appx. 854, 856 (11th Cir.
Aug. 12, 2010) (quoting § 1915(e)(2)(B)(i)); Robert
v. Garrett, No. 3:07-cv-625, 2007 WL 2320064, *1 (M.D.
Ala. Aug. 10, 2007) (observing that court must “sua
sponte dismiss [an indigent non-prisoner's]
complaint or any portion thereof which is frivolous,
malicious, fails to state a claim, or seeks damages from
defendants who are immune”); see also 28
U.S.C. § 1915(e)(2)(B)(i)-(iii). A claim is frivolous
under § 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.' ” Napier
v. Preslicka, 314 F.3d 528, 531 (11th Cir.
2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001)); see also Neitzke, 490
U.S. at 325 (holding that a complaint “is frivolous
where it lacks an arguable basis either in law or in
fact”). “A case is frivolous if the factual
allegations are ‘clearly baseless, ' or if it is
based on an ‘indisputably meritless' legal theory.
Jackson, 391 Fed.Appx. at 856 (quoting Carroll
v. Gross, 984 F.2d 392, 393 (11th Cir. 1993))
(quotation marks omitted in original). Additionally, §
1915 “accords judges not only the authority to dismiss
a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Bilal, 251 F.3d at 1349 (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989).

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